from the downward-spiral-of-trolldom dept

When we recently discussed an event that pitted innovators against patent trolls (which happened last night), I had no idea that one of the innovators speaking was embroiled in a legal battle that is equal parts contentious and maddening hilarity. Kevin O'Connor of FindTheBest was sent the kind of settlement offer we see far too often these days for violating a patent that essentially covers collecting multiple user preferences on the internet. The way it was supposed to work, in the mind of patent trolls, was that O'Connor would realize the offer of $50,000 was likely less than it would cost for a legal battle, causing him to immediately pay patent troll Lumen View. Things, as you will shortly see, did not go as planned.

Instead of kowtowing to the troll's demand for $50,000, O'Connor decided to pledge to spend $1 million fighting. He knows it's not the rational business decision... and he doesn't care. Now, we're getting a vision of how FindTheBest is putting that money to use. The company has made a novel legal claim, saying that the troll that came after it is so reckless, it has engaged in outright extortion, violating racketeering laws.

The claim follows an investigation of the troll that sued the startup. The investigation started when O'Connor and FindTheBest Director of Operations Danny Seigle simply started making phone calls. "The first thing you think is, who the hell are these guys?" O'Connor ultimately called the lead inventor listed on the patent, which describes a system for "multilateral decision-making."

There have been few attempts at applying RICO laws against patent trolls in the past. Cisco did it once, unsuccessfully. However, the subsequent actions by Lumen View and its legal council won't do anything to help its RICO defense, given that every single action it takes seems to be the verbal and legal equivalent of "hey, it'd be a shame if anything happened to your business." O'Connor, clearly motivated to fight the troll, took the logical step of contacting the inventor listed on the patent. Lumen View's response? Accusation that a hate crime was committed. Seriously.

Lumen's attorney made the claim that calling someone a "patent troll" was actually a "hate crime" under “Ninth Circuit precedent." After O'Connor contacted Shapiro, Lumen View attorney Wasserbauer threatened to file criminal charges—unless FindTheBest settled the civil case immediately, apologized, and gave financial compensation to Shapiro. The offer was "good until close of business that day," Wasserbauer allegedly said.

Calling an inventor is a hate crime. Calling someone a patent troll is a hate crime. We're left with two possibilities. Either Lumen View's lawyer doesn't know a whole lot about this whole law thing he's engaged in, or its simply trying to intimidate O'Connor using scary terms and threatening to sling mud. That's because that accusation of hate-crime is completely without merit. Go ahead, look for yourself and see where in any federal or state hate-crime legislation a patent troll is a protected party, which consists of race, religion, ethnicity, nationality, gender, sexual orientation, gender identity, or disability. The closest thing that might apply to patent trolls is disability, as in their disabled nature when it comes to producing a freaking product or service. But that's a stretch even a drunk judge is unlikely to buy.

The rest of Lumen View's actions put the RICO crosshairs squarely on its foreheads. O'Connor's suit alleges that its impossible for FindTheBest to have infringed on the patent, since FTB only collects preferences for users one at a time and the patent is for multiple users entering preferences. The suit also alleges that Lumen View didn't do any investigation beyond a simple internet search and alleges that they have Lumen View's own expert witness to attest as such. Then there's all the other threats in the settlement letters.

The threat letter is also full of barely veiled threats that Lumen will make the lawsuit as expensive as possible. In fact, the majority of the letter describes how the defendant company must take drastic steps to collect all its electronic and other documents now that it has been sued—if it doesn't, sanctions may occur, says Lumen. Finally, The letter makes technological demands that would be almost impossible to meet without shutting down one's business. In the Lumen View letter, it instructs the target company to immediately preserve "the complete contents of each user's network share and e-mail accounts," writes Lumen. That's in addition to "system sequestration," meaning that any accused "systems, media, and devices" should be "remove[d]... from service to properly sequester and protect them."

Put more simply, Lumen View is asking an internet-based company to not use any of their computers if they don't settle, which is exactly the "hey, it'd be a shame if anything happened to your business" routine. The entire point of the discovery process in situations like this is often to make life hell on the target company, the threat of which causes it to settle. It's a form of extortion by any reasonable definition of the word.

The great thing is that O'Connor doesn't appear to care.

"There's a lot of outrageous stories, but everyone's so damn afraid of coming forward—It's like going against the Mafia," he said. But the idea that trolls may retaliate against those who speak out is overblown, he thinks. "If they want to try to teach me a lesson, go for it. This will be my retirement. I'll fight them."

If it's a rallying cry to the larger innovative world to fight patent trolls, it needs a first-blood victory behind it to really motivate the troops. Here's hoping O'Connor is victorious. Oh, and sorry for all the hate-criming going on in this post. It's so hard to call a troll a troll these days.

Really? They threatened to pursue criminal charges unless they got paid money? A federal prosecutor may find that interesting...

"Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both" - http://codes.lp.findlaw.com/uscode/18/I/41/873

It's a religion

This whole "Intellectual Property" thing has been elevated to a religion.
- Completely relies on faith - evidence to the contrary gets ignored or belittled
- Non-believers get persecuted
- Has its holy relics, books, and rituals
- Triggers manic obsession in some of its adherents
- Believers simply can't fathom the mindset of non-believers
- Believers feel a need to "spread the word", particularly to less enlightened foreign countries

Need to apply the wins available

Trolling needs to be taken down by the very rules they've been exploiting. There's been a few legal wins out there, and they need to be used as the proverbial nail-bat.

Collapse the shell game: there's a major ruling about copyright that I'm forgetting attm(senile, yo) where the right to sue and nothing else can't be transferred. Couple this with the recent Prenda Law shenanigans to claim the lawyers coming after you might be the clients, which is a litigation no-no. Burrow down through the layers of fake companies to find out who is the person(not corporation, damn you SCOTUS) who actually is the one directing the madness.

At the very least, you kill a few of the shells. At best, you strip the anonymity that makes the trolling possible.

In addition to the federal law quotes above, state rules generally would result in sanctions for any attorney who threatens criminal prosecution for leverage in a civil matter. For one, it's not up to a civil lawyer to pursue criminal charges. That's the D.A.'s prerogative anyway.

Here's the rule in California. There is probably something similar in Mass:

Re: Isn't that blackmail?

Re: Re: Isn't that blackmail?

California Penal Code Section 159 (as cited by Wikipedia): "No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three instances, and with a corrupt or malicious intent to vex and annoy."

But the intent here is not so much to vex and annoy - it's to get money. (Which is why they are trying for the RICO angle instead of this one, probably.)

Re: would that mean we could get charge with a hate crime?

@ "Shadow Dragon"
Would that mean we could get charge with hate crime for calling OOTB a troll? get ducking real.
So here's "Shadow Dragon" from, er, out of the blue trolling "out_of_the_blue" proving beyond doubt that a) I don't even have to comment on a piece to elicit ad hom attacks b) that "Shadow Dragon" has zero self-awareness.

Not that I mind you kids polluting the site, ya understand. -- Since can't stop you, decided to not mind! -- I've complained and mocked you in every way that my little ingenuity provides, but appears impossible to do anything but laugh at the Techdirt fanboys.

So one and all carry on embiggening my influence, fanboys!Where the fanboys troll the site with vulgar ad hom, and call anyone disagreeing "trolls"!Ankle-biters yap on sight; fanboys hate me 'cause I'm right.Be careful to not give personal details: only targets fanboy ad hom.

Re: Re: would that mean we could get charge with a hate crime?

>That's because that accusation of hate-crime is completely without merit. Go ahead, look for yourself and see where in any federal or state hate-crime legislation a patent troll is a protected party, which consists of race, religion, ethnicity, nationality, gender, sexual orientation, gender identity, or disability.

Being a patent troll and especially a lawyer for such a company definitely points to having some form of mental disability and thus they are likely covered for this being a 'hate crime'.

Either the lawyers for Lumen View are stupid, arrogant or they are entirely clueless how the court system works. Just because someone has sent you notice that you are going to be sued does not mean that you need to immediately sequester all of your electronic and computer related devices.

Any lay person can tell you that you are NOT required to preserve anything, not a damned thing, until a motion is made by an attorney and the presiding judge rules on your motion.

Now, I'm not a lawyer, but I've watched enough court-related dramas to realize that you are under no obligation to preserve anything until a judge orders you to preserve that evidence.

These Lumen View idiot lawyers are so dumb that they have decided to skip over the judge and go straight to demanding that FTBs electronic and computer devices be immediately preserved.

WOW!

I don't know about you guys, but that takes some very big balls to attempt to make that one fly. LOLS

Re: Re: would that mean we could get charge with a hate crime?

I fail to see how an ad hom attack implies a lack of self-awareness (your point b), and I use the term "point" loosely - it's not an ad hom attack on you, just a response to what I consider a poorly crafted response). Are you responding to an ad hom attack with one of your own? By doing so, it diminishes any reason I can see for you arguing, unless there's some actual merit to Shadow Dragon's assertion.

You might want to try applying the definition of ad hom by avoiding taking part in the same thing instead of just quoting it. An analysis of your last three sentences appear to be an ad hom attack on anyone who uses this site. I'd say it's poor taste to call someone out for doing something, then turning around and doing the same thing.

Re: Re:

'While a party is not required to preserve "every shred of paper, every email or electronic document, and every backup tape," a party is required to preserve what it "knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, or is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request." Zubulake IV, 220 F.R.D. at 217 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y 1991))'

Re: Re: It's a religion

Re: Re: Re:

reasonably

That's the key word there. However this is a moot point. To reach the point where a lay person had to make a 'reasonable' judgement call about potential evidence in a suit against them, one would think they would need to have a reasonable, coherent suit filed against them.

All they have is a carbon copy filing (and yes, I mean 'carbon copy' literally), with no relation between the patent and the software in question, and a bunch of direct threats.

Patent is, as expected, bogus

A quick scan of the patent confirms my first thought - this is trivial stuff for just about anyone in computer science-related fields. Hell, this was obvious to people in the field well before MY undergraduate, which was a decade or so ago.

In fact, there's a wikipedia page on the "stable marriage problem", which Dale and Shapley proved a solution must exist in 19-fucking-62. It's so well-regarding in the field that they got the 2012 Nobel Prize in Economics for their work.

And that's proving that there IS a solution to "bilateral decision-making"; the concept had been around and investigated in computer science well before this date.

The patent just adds in multi-variate preferences (ie, turn more than one preferences into a single 'desirability' variable - a fairly fucking trivial task) and slaps what is effectively "in a commercial setting" on it.

I think what really steams me (beyond the whole patent troll thing) is that they're claiming someone else's work as their own, which is just about the most loathed act in research.

Eileen Shapiro is an MBA, I see - perhaps she believes that she's the first to come up with the idea. Perhaps.

:-3

"The closest thing that might apply to patent trolls is disability, as in their disabled nature when it comes to producing a freaking product or service. But that's a stretch even a drunk judge is unlikely to buy."

The nice young men in their white clean coats are coming to give them their meds :-3

For those who are curious about what the patent is over....the description of it is along the lines of "Creating custom preferences based upon user decisions"...I am thinking back to Ultima IV where you are asked a bunch of questions to choose your class of character with that!

Re: Re: would that mean we could get charge with a hate crime?

Re: Need to apply the wins available

I think your talking about righthaven, where they bought a bunch of copyrights, but the only right they got was the right to sue rather then any of the real rights copyright gives you, such as reproduction. The legal ruling was that the right to sue was not a function of the copyright, but a function of redress for violations of the 'rights' discussed in whole by the term copyright.

So you can buy the right of distribution, and sue people for violating your right of distribution, but ou can buy the right to sue people for 'infringement' without owning any of the rights being infringed.